Atchison, Topeka & Santa Fé Railroad v. Morgan

The opinion of the court was delivered by Horton, C. J.:

It is contended on the part of the railroad company, that judgment should have been rendered in its favor upon the special findings of the jury. This is not so. The findings are contradictory and conflicting. It is evident from the special findings, that the jury founded their verdict upon a misconception of the law applicable to the case; thus, they found that if the engineer had blown the whistle or rung the bell at a point eighty rods east of the crossing where the cattle were injured and killed, neither such blowing of the whistle nor the ringing of the bell would have stopped the cattle from going upon the railroad track at the crossing; yet they found that the only negligence of which the defendant or any of its employés was guilty, was in not having up a whistling-post, and in not sounding the whistle attached to the engine three times, at least eighty rods from the place where the railroad crossed the highway. The statute does not require a railroad company to put up whistling-posts. The omission to sound the whistle of an engine in accordance with the provisions of §60, page 226, Comp. Laws of 1879, is negligence. (Railroad Co. v. Rice, 10 Kas. 426 ; Railroad Co. v. Phillipi, 20 id. 12; Railroad, Co. v. Wilson, 28 id. 639.) Although this is so, a railroad company is not liable for damages unless the injury complained of is attributable to or caused by such omission. The words of the statute are, “and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.” (Railroad Co. v. McDaniel, 63 Ill. 122 ; Railroad Co. v. Blackburn, *80 63 id. 167 ; Stoneman v. Railroad Co., 58 Mo. 503 ; Holman v. Railroad Co., 62 id. 562 ; Karle v. Railroad Co., 55 id. 483.) The finding of the jury shows that the injuries to the stock were not caused by the neglect to sound the whistle.

Among the instructions to the jury complained of, is the following:

“If you should find that the negligence of the plaintiff or his agents or servants was the immediate cause of the injuries complained of, and that of the defendant only the remote cause, you will find for the defendant; but if you should find that the negligence of the plaintiff was only slight compared with that of the defendant, if there was negligence on the part of both, your verdict should be for the plaintiff.”

This instruction adopts the doctrine of comparative negligence, and is therefore erroneous. Under this instruction, if the plaintiff and the railroad company were both guilty of negligence contributing to injuring and killing the stock, the plaintiff would be entitled to recover damages if his negligence was less than that of the company. The law has not been thus announced by this court. We do not indorse the doctrine of comparative negligence. The rule is properly laid down in Sawyer v. Sauer, 10 Kas. 466 . If the trial court had instructed the jury that if the negligence of the plaintiff was only slight, or the remote cause of the injury, he might still recover, notwithstanding such slight or remote cause, the instruction would be within the rule; but when the jury were instructed to compare the negligence of the plaintiff with that of the defendant, the direction passed beyond the authoritative line, and became misdirection. This court has recognized degrees of negligence in many cases, but has never sanctioned any instruction permitting a jury to simply compare the negligence of the parties. (Railway Co. v. Peavey, 29 Kas. 169 ; Railway Co. v. Young, 19 id. 488; Railway Co. v. Pointer, 14 id. 37; Sawyer v. Sauer, supra.) It is possible that the trial court did not intend to instruct the jury to compare the negligence of the plaintiff and that of the railroad company, but the direction bears this interpretation.

*81 The judgment of the district court will be reversed, and the ■cause remanded for a new trial.

All the Justices concurring.